Wright v. Glens Falls, Sandy Hill & Fort Edward Street Railroad

The defendant, a common carrier, operates a street railroad between Glens Falls, Sandy Hill, and Ft. Edward. The plaintiff claimed, and as a witness testified on the trial, that on the night of January 1, 1896, shortly before 12 o’clock, he saw one of defendant’s cars on the street in Glens Falls, going towards Sandy Hill, and inquired of its conductor if the car was going through to the latter place, and at the usual rate for passengers, of 6 cents. The conductor answering in the affirmative, the plaintiff boarded the car. When it had proceeded to a spot in the country about midway between Glens Falls and Sandy Hill, the conductor demanded 25 cents fare. This the plaintiff refused to pay, but tendered a faze of 6 cents, which he testified the conductor had informed him would be charged when he entered the car at Glens Falls. The conductor refused to receive the 6 cents, and thereupon forcibly ejected the plaintiff from the car. It was claimed that in doing so he used unnecessary force, and also that after the plaintiff had been thus ejected, and was standing by the side of the car, he was assaulted by the conductor.

It was shown that the usual rate of fare charged by the defendant for conveying passengers from Glens Falls and Sandy Hill was 6 cents, but that it ran a special car late at night to connect with the train of the Delaware & Hudson Canal Company, and charged passengers on

The court below was not compelled, on motion of the defendant, to strike out the evidence given in regard to the alleged assault by the conductor upon the plaintiff while the latter was standing by the car, after being ejected therefrom. Under the circumstances disclosed, it was a question for the jury whether or not the conductor was engaged in the performance of his duties as agent of the defendant at the time of said assault. See Dwinelle v. Railroad Co., supra.

Assuming, therefore, that, on the testimony, the jury was authorized to find that the claim of the plaintiff was established as to the representations of the conductor when he entered the car, in our opinion the judgment and order should be affirmed, were it not for an inadvertent error of the trial court in instructions given to the jury on the question of damages. In the first instance, he charged that the plaintiff, under the facts established by the evidence, was only entitled to recover compensatory damages. Subsequently, at the request of the plaintiff’s counsel “to charge that if the jury find that if the action of the conductor at any time was malicious, that they may give not only compensatory damages, but exemplary damages,” the court remarked, ‘T think that is so.” The defendant excepted. The last instruction, therefore, given to the jury, was that exemplary damages might be awarded to the plaintiff if the defendant’s conductor, in ejecting the plaintiff from its car, acted with malice. We think the charge thus made to the jury was erroneous. In Donivan v. Railway Co. (Com. Pl.) 21 N. Y. Supp. 457 , which was an action for injuries inflicted on the plaintiff by the defendant’s servants in ejecting him from the platform of defendant’s railway, Pryor, J., delivering the opinion of the court, after a careful review of the authorities, reached the conclusion that, for the willful tort of a servant,

No facts were shown in the case under consideration which, under the doctrine established in the authorities above cited, authorized the recovery of exemplary damages; and as, notwithstanding the small verdict rendered, we are unable to determine that the defendant was not injured by the erroneous instructions thus given by the trial court to the jury on the question of damages, the judgment should be reversed, and a new trial granted, costs to abide the event. All concur.